The African Law Service brings diverse commentary on legal developments from across our African continent.
The African Law Service brings diverse commentary on legal developments from across our African continent.
Contemporary Zambian laws allowing the President to regulate traditional chiefly appointments have been declared unconstitutional. The laws, based on colonial-era ordinances, were tested when a prominent traditional leader disputed the President’s power to legitimise a chief’s appointment through ‘recognition’. The court found that these presidential powers infringed the amended constitution saying ‘no law’ could allow anyone the right to ‘recognise or withdraw the recognition of a chief’.
Is it possible for the institution of chieftaincy and its associated traditions to fit comfortably under a system of democratic constitutionalism? Many African countries are working out how the two can coexist. One of the most recent examples comes from Zambia where three judges of the constitutional court have just had to resolve something of a conundrum.
Unesco’s invitation to speak at an event associated with the Judicial Dialogue in Uganda last month included a request for practical ways in which the judiciary could ‘make life easier’ for members of the media who write about the courts. Here are some of the suggestions put to senior judges, and that made for interesting discussion.
Judicial accountability takes on an additional dimension in an era of online access. Sure, judges are held accountable through the judgments they write. But in an era of online access those judgments need to be available and in the public domain as soon as possible.
Hailed as a hugely significant step in promoting and protecting human rights, Uganda’s new law looked set to be an example for other African countries. But despite the hope and the hype around the new legislation, the law has not yet taken effect. This despite presidential assent eight months ago. Now the failure to publish this important new law is being challenged in court.
Four months ago, we published an enthusiastic story about a new law in Uganda. It was headed, ‘Uganda’s brave new human rights law takes enforcement to a new level’.
This important new law introduced a number of ways to ensure that human rights were respected, including holding state officials responsible for all or part of the legal costs if they were found to have infringed the new law, Officials would also be liable for part of any damages awarded.
Mothers have been warned by a senior judge from Sierra Leone to be ‘doubly careful’ about the safety of their daughters. They should be ‘less trusting’ of others and should ‘prod on with love’ if they notice any change in their children, to find out the reason for the altered behaviour. This might help avert would-be rapists. Judge Reginald Fynn made these comments after finding a man guilty of raping a six-year-old who had been left in his care by the girl’s mother.
Read judgment
This is the first time I have read judgment in a rape trial heard by the High Court of Sierra Leone. There are several ways in which it is different from cases in other jurisdictions involving child rape or ‘defilement’ as it is sometimes called, and some of these differences are worth pointing out.
Our law recognises a variety of ways in which a person may involve him/herself in crime. One may, for example strangle someone to death with one's own hands, stone someone to death jointly with one or more others, keep a lookout while others rob and kill someone, hire someone to kill for you, incite others to commit murder, loan someone a gun with which to kill another, or assist someone to dispose of the dead body, amongst other things.
Negligence – also known as culpa – is a lesser form of fault relative to intention. It is easier for the prosecution to prove and it usually attracts a lesser sentence than a conviction for the same conduct where the form of fault is intention. So, a conviction for culpable homicide would ordinarily attract a lesser sentence than for murder.
Intention in law has a technical meaning. It includes more than what may ordinarily be understood by the term. It extends beyond what a person may have as his/her purpose (dolus directus), and beyond even what is not one’s purpose but which is foreseen as inevitable (dolus indirectus). It extends to what is neither one’s purpose nor foreseen as inevitable, but to what is nevertheless foreseen as a (real) possibility - dolus eventualis.